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Earlier this morning, the Supreme Court released its order list, which included notice that it has granted cert in American Needle v. NFL. The Seventh Circuit held earlier this year that the NFL can enjoy single entity status -- and thus immunity from Section 1 of the Sherman Antitrust Act -- for limited purposes (namely, apparel sales). Until American Needle, leagues with franchises that are separately owned had traditionally been viewed as joint ventures, and thus subject to Section 1. Although U.S. Solicitor General Elena Kagan recommended that the Court not grant cert, it has done so anyway. It should make for a very important and interesting case.

The Solicitor General does not have a very good record when it comes to the Supreme Court and sports antitrust. If memory serves, the United States was in disagreement with the Court's ultimate ruling in Brown v. Pro Football as well.

With that said, I think the Supreme Court was right to grant certiorari, as there seems to be a real hole in the 7th Circuit's reasoning that extended cooperation amongst separate competitors obviates an antitrust violation (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291974).At the same time, however, I fear that certain members of this particular court may seek to use this case to provide unusually structured businesses, such as sport, with an even broader loophole.

Interestingly, Justice Stephens was a dissenting voice in the 1984 case Copperweld, in which he did not even want to extend the single-entity defense to a company and its wholly owned subsidiary. I would love to see Justice Stephens' reaction to the 7th Cir. reasoning in American Needle, which seems to take Copperweld and twist it into something far broader and more concerning.

The Solicitor General does not have a very good record when it comes to the Supreme Court and sports antitrust. If memory serves, the United States was in disagreement with the Court's ultimate ruling in Brown v. Pro Football as well.

With that said, I think the Supreme Court was right to grant certiorari, as there seems to be a real hole in the 7th Circuit's reasoning.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291974).

At the same time, however, I fear that certain members of this particular Court may seek to use this case to provide unusually structured businesses, such as sports leagues, with an even broader exception.

Interestingly, Justice Stephens was a dissenting voice in the 1984 Copperweld case, in which he did not even want to extend the single-entity defense to a company and its wholly owned subsidiary. I would love to see Justice Stephens' reaction to the 7th Cir. reasoning in American Needle, which seems to take Copperweld and twist it into something far broader and more concerning.